TPP

Ammon Bundy and his assault-rifle-packing militia took over the Malheur National Refuge in eastern Oregon to kick off the New Year. Their gripe appears to be the Federal Government’s pesky grazing regulations interfering with their “right” to earn a profit off government land.[1] Gonna’ be a showdown at the last chance corral I guess. Now I imagine Bundy and the boys don’t take a liken’ to Wall Street bankers any more than they do to the Feds. But in this instance, the bankers could help Bundy a lot, and maybe save his life. TransCanada, sponsor of the now dead Keystone XL Pipeline and like Bundy no doubt, also dependent on preferred contractual access to public lands, shows the way. President Obama lobbed a final nail in the coffin by vetoing the pipeline and more recently by formally rejecting the project. But the deed was already done by the Saudis who killed it by unleashing a torrent of oil supply on the market, collapsing oil prices, and ending the economic viability of Canada’s grotesque Tar Sands and the need for the pipeline in the first place. In fact TransCanada had already withdrawn the plan from consideration. However, that didn’t stop TransCanada from now suing the United States of America for $15 billion in damages over Obama’s decision that the XL Pipeline was not in the interest of the United States, including our “security, safety, and environment.” “TransCanada has been unjustly deprived of the value of its multibillion-dollar investment by the U.S. administration’s action,” the company said in a statement after Obama formally rejected the planned pipeline prior to the Paris Climate meeting, timed to bolster what he hopes will be his legacy as a leader on climate. The XL Pipeline decision was effected through a time-honored democratic process enshrined in the U.S. Constitution. Some agree with the decision, some don’t. But that’s not the point. The question is, on what basis can a foreign company sue the U.S. government over a policy decision, putting American taxpayers at risk for $15 billion in this case? The answer: by invoking the North American Free Trade Agreement and its Investor-State Dispute Settlement (ISDS) clause. This clause, as I previously explained here and here, about the contentious Trans-Pacific Partnership (TPP) trade agreement now awaiting approval by Congress, amounts to a veritable “trading away of our sovereignty.” The TransCanada suit proves the point, and it’s not the first such suit challenging a nation’s sovereignty. TPP will open up this insanity to 13 countries and economic activity representing 40% of world GDP. My advice to Bundy and his buddies holed up in Eastern Oregon facing a cold winter? Buy a ranch in Canada. Hire Goldman Sachs or JPMorgan to advise on a “tax inversion” in which using a legal slight of hand the Canadian ranch buys the Bundy ranch but Bundy remains in control of the combined operations (see the recent Pfizer inversion for details). Then sue the United States Government for $15 billion under the ISDS mechanism of NAFTA claiming the BLM grazing regulations interfere with their right to make a profit on their investment. This gets the issue away from the annoying U.S. government and into the hands of a three-person extrajudicial tribunal to determine the outcome of the case. Sweet. In the meantime, stand down, holster your guns, and thus, stay alive to fight another day. You can always ammo up later if the tribunal lets you down. Oh, and if Bundy doesn’t have the cash to buy the Canadian ranch, no problem. There are a number of tougher than Bundy (no guns required) hedge funds that will be all too happy to lend money into a lawsuit and then corrupt the judicial process by bribing the lawmakers (sorry exercising their rights to free speech under Citizens United) to make a buck. For details, see the current battle in Puerto Rico where these hedge funds are using their campaign contribution derived power to influence legislators over the decision to refuse Puerto Rico access to the normal and civilized protections afforded other borrowers including Donald Trump – but not our children if they take out a student loan – under the bankruptcy code. No doubt these hedge funds will have some crafty ideas for how to swing a simple three-person tribunal. For a mere twenty percent of the profits plus expenses, it’s a deal! Insanity is the new normal in America.
[1] The Bureau of Land Management (“BLM”) policies have issues worthy of debate, but turning land over to folks like Bundy to manage without restrictions is not the solution.

This post was previously published on the Huffington Post’s Business page. “Free Trade” was in the news this Memorial Day weekend. President Obama is pushing hard for “fast track” approval of his Trans-Pacific Partnership (“TPP”) Agreement, calling for a simple up or down vote without the possibility of amendments or floor debate. The New York Times reported that Senate Majority Leader Mitch McConnell has forged a “rare alliance” with the president to push the trade legislation. Senate Finance Committee Chairman Orin Hatch has been quoted as saying, “it shows that when the president is right, we will support him.” (Never mind that Hatch has also been quoted as saying: “I don’t know fully what’s in TPP myself.”) Dear Mr. President: With all due respect, how do you spell RED FLAG! Myths and confusion abound both around the meaning of so-called free trade and what the TPP is really about. Here is what I know. First, the TPP is a very big deal. It will impact the lives of billions of people, and our very sovereignty as a nation, as explained below. If ratified, it would create the largest “free trade zone” in the world, encompassing 12 Pacific Rim nations that represent some 40 percent of global GDP, dwarfing the impact of NAFTA. It will no doubt set precedents for the Trans-Atlantic Trade and Investment Partnership (TTIP), also being negotiated at this time. Second, many “free trade” advocates who support the TPP, subscribe to a simplistic and outdated ideology that creates a false dichotomy between free trade and protectionism. For example, the pro-“free trade” argument advanced in a recent New York Times Op-Ed by William Daley — of the famous Chicago political family it must be said — a former JPMorgan Chase executive who oversaw the bank’s lobbying efforts and was (briefly) President Obama’s Chief of Staff, is typically misconceived: “Many on the political left and right oppose the liberalization of trade policy,” he notes, “just as they did during the NAFTA debate, arguing instead for protectionist measures.” Daley goes on to declare: “There is no path to middle-class prosperity without tearing down walls to American exports” and proclaims, “our products face very high barriers to entry overseas in the form of tariffs, quotas, and outright discrimination.” That is the “free trade” myth, but it is simply not the least bit true. Import replacement, beginning with a sustainable, renewables-based energy infrastructure, would be a much more effective path to middle-class prosperity. And that is just for starters. Furthermore, the TPP is not about tearing down (largely nonexistent or immaterial) tariffs and quotas that commentators with not-so-hidden agendas like Daley say get in the way of free trade. What is clear about the TPP, as explained below, is that the investor protections in the agreement will most certainly benefit global companies and foreign hedge funds like the one Daley just signed up with as head salesman. Third, while the geopolitical intention of the TPP to influence the new economic order in the Pacific Rim in the face of China’s rise as an economic power is understandable, the practical ramifications for jobs in the U.S., and for labor and environmental standards globally, are highly complex. Our experience with modern trade has been mixed at best. When considering the arguments of free trade proponents on both the left and the right, we should remember that Classical Economist David Ricardo’s theory of “comparative advantage,” based on the assumption that everyone wins from more trade, was built explicitly on a critical assumption that capital did not and would not cross national boundaries. While correct in the 19th century when he developed the theory, that assumption no longer holds today, invalidating the very theory upon which the free trade myth exists. With capital flowing quite freely across national boundaries what results is not comparative advantage but instead the often brutal reality of competitive advantage. Modern trade most certainly creates winners andlosers (see the American rust belt for the tragic details), igniting a form of commercial dynamism that transforms entire ways of life, often faster than human cultures can adapt. In the real world, the practical ramifications of so-called “free trade” are neither inherently good nor bad. They are complicated, and the devil is in the details. And the details are in the agreements. And “fast track” means they do not want us to see them. Finally, the Investor-State Dispute Settlement mechanism (ISDS) embedded in the TPP (and many trade agreements) is a threat to our national sovereignty. Initially designed as a means to protect investments from nationalization, ISDS enables foreign companies (or foreign hedge funds like the one Daley now works for) to sue host country governments over laws that might infringe upon their “right” to profit through ad hoc arbitration proceedings that can circumvent the rule of law established though the democratic process. A new report released by Columbia University’s Lise Johnson, Lisa Sachs, and Jeffrey Sachs explains the flawed structure and unacceptable risks of the ISDS mechanism and concludes that it should be removed from trade agreements altogether. As I have written previously, ISDS would, for example, create unquantifiable legal exposure for tax payers should the U.S. decide to commit to new climate agreements, if those agreements might be construed to harm foreign corporate interests (which they most certainly will if we are serious about dealing with climate change). We live in a rapidly changing world that will demand new laws in response to changing contexts in areas ranging from bio- and other technologies, to labor and environmental practices, and from freedom of information, to financial engineering. By embedding ISDS in both the TPP and the TTIP, the U.S. would expose itself to lawsuits from thousands of companies, hedge funds, and banks, on a scale that is impossible to fully comprehend. As the Columbia report makes clear, market incentives, and mechanisms such as political risk insurance already offer a solution to the original problem of nationalization risk. Why, Mr. President, and Mr. McConnell, and Mr. Hatch, and Mr. Daley (and Mr. Cruz for that matter and your Tea Party friends) are you prepared to trade away our sovereignty, freedom, and democracy to foreign multinationals and hedge funds? The irony here, our having just celebrated Memorial Day weekend, should not be missed.